The author is Archit K.P., a second year student at The National University of Advanced Legal Studies, Kochi.
A recent Canadian court ruling recognised a ‘thumbs-up’ emoji (👍) as valid consent for forming an e-contract on WhatsApp, one of the most popular messenger applications. This has led to many new questions that beg to be answered in the already complicated and ever-evolving field of contract law jurisprudence. It also creates multiple undesirable situations for people who enter into e-contracts on WhatsApp, with no quantifiable repose for their woes. Recognising their plight, this article contends that such e-contracts should not be recognised until an adequate measure is adopted, either by the judiciary or by WhatsApp, owned by Meta Platforms, to address the existing problem(s).
Validity of e-contracts in India
The recent court ruling in Canada reinforces the validity of e-contracts, which may be instantly concluded by parties from the comfort of their homes. The recognition of the thumbs-up (👍) emoji as a “yes” will have little relevance to the points of analysis in this article, save serving as the igniter for the author’s thought process.
In India, electronic agreements concluded on WhatsApp or other electronic means are given legal enforceability as any other contract under the Indian Contract Act of 1872, as long as they comply with other statutory provisions enshrined in section 10. Further, section 10A of the Information Technology Act, 2000 and section 85A of the Indian Evidence Act, 1872 recognise the validity of “contracts concluded through electronic means” without being mandated to produce a physical copy. Those above and subsequent provisions in the Indian Evidence Act of 1872 make it so that electronic signatures and any other electronic material that may potentially serve as evidence have validity in the eyes of law.
There exist several case laws that reestablish the validity of e-contracts in Indian contract jurisprudence, such as the Trimex International Fze vs. Vedanta Aluminium Limited, India (2010) case, where exchanges over e-mail were given the qualification as legitimate proof for the conclusion of a contract. Moreover, sections 65A and 65B of the Indian Evidence Act of 1872 uphold the admissibility of electronic records in courts as valid evidence. Therefore, e-contracts enjoy absolute validity under the contract law regime in India, like in other common law countries.
The Problem(s) Posed
The new WhatsApp ‘edit’ feature allows users to edit their messages entirely within 15 minutes of sending the initial message. Though the new edited message is classified as ‘Edited’ within parentheses, the recipient receives no notification. So, a situation may arise wherein an e-contract is concluded by sending a “yes” to a proposal by one of two or more contracting parties, subsequent to which either one or more parties change their position. However, at this point, the other party may make use of the ‘edit’ feature to change their “yes” to a “no”. The contracting party that has changed their position in light of the concluded e-contract is not notified of the same edit by WhatsApp. Moreover, there would be no reason for the owner of a business account to keep re-checking one of hundreds of business communications waiting for an unnotified edit.
The aggrieved contracting party could have changed their position to his detriment, but it is hard to provide them a remedy under contract law, as it is hard to prove that such an e-contract was concluded at all. Therefore, it is essential for the validity of such e-contracts to be suspended temporarily within Indian contract jurisprudence until the courts answer this critical question of law, lest individuals incur losses through the exploitation of this loophole by intelligent contractors. In its present state, recognising such e-contracts leads to an inequitable state that is detrimental to all.
Though e-contracts were recognised for e-mails in the Trimex International case above, it is relevant to note that e-mails, as a different form of electronic communication, do not allow ‘edits’ to messages once sent. This is why e-mails are so potent that they squarely fit into the definition and enforceability of contracts under the Indian Contract Act of 1872 and the Indian Evidence Act of the same year. E-mails are more powerful than WhatsApp and other messaging platforms in an agreement enforceable under the law since they lack many of WhatsApp’s popular features, such as the option to ‘delete’ messages once sent. A similar problem is posed by WhatsApp's ‘delete’ feature as well.
Since WhatsApp boasts of a near-monopoly within the domain of digital messaging platforms, at least in India (per survey data hyperlinked within a previous paragraph of this article), WhatsApp and its owner, Meta Platforms, must tread carefully and slowly as it implements new features to its well-functioning e-messaging ecosystem. When such a large demographic depends on WhatsApp economically for entering into and exiting from e-contracts and digital commerce relationships, WhatsApp’s developers must exercise utmost caution and weigh the feature’s impact upon said demographic over satisfying the wants of a few tech-savvy people. The author contends that WhatsApp must, in some form, be held liable for wantonly treading on the rights of people who rely on it for entering into e-contracts.
However, the author of this article acknowledges the importance of e-contracts in a country with a growing e-commerce sector where every household relies on it, regardless of annual per capita income. Jio and other telecom service providers have brought internet access to every remote village in India. This further stresses the importance of courts addressing this issue as soon as possible in a suo moto manner in case of a lack of appropriate petitions. Therefore, the ideal solution to this present predicament may be for the courts to direct Meta Platforms, which owns WhatsApp, to provide users with the option to view past ‘edits’ to messages and enable notifications for subsequent ‘edits’ to messages.
The author can only hope that the courts solve the present problem posed for individuals who rely on its equitable systems for contract enforcement and on WhatsApp’s digital commerce space, either by holding hands with WhatsApp or by halting WhatsApp in its pathuntil a remedy is implemented from their end.